United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2005 Decided February 10, 2006
No. 04-7158
ALAN V. WASHBURN,
APPELLANT
v.
MICHAEL LAVOIE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 03cv00869)
Alan V. Washburn, appearing pro se, argued the cause and
filed the briefs for appellant.
Keisha A. Gary argued the cause for appellees. With her on
the brief were Woody N. Peterson and Peter J. Kadzik.
Before: SENTELLE, HENDERSON, and GARLAND, Circuit
Judges.
Opinion for the court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: It may be, as Robert Frost wrote,
that “[s]omething there is that doesn’t love a wall.”1 In this
case, however, an even thicker wall might have forestalled what
the district court accurately described as a “lengthy and vitriolic
neighborhood dispute.” Washburn v. Lavoie, 357 F. Supp. 2d
210, 212 (D.D.C. 2004). On one side of the wall in question
was Alan V. Washburn, an attorney and thirty-year resident of
the Georgetown neighborhood of Washington, D.C. On the
other side were four Georgetown University undergraduates.
Washburn complained that the students were making too much
noise. The students complained that Washburn was illegally
tape-recording them. Testy letters were exchanged, and
Washburn sued the students for defamation. For the reasons
explained below, we affirm the district court’s grant of summary
judgment in favor of the students.
I
Plaintiff Washburn has lived at his address on O Street in
Georgetown since at least 1973. In August 2001, defendants
Michael Lavoie, Christian Wood, Robert Bercik, and Edmund
Donnelly moved into an adjacent townhouse. The property --
located about three blocks from the main gates of Georgetown
University -- is owned by Richard and Nancy Itteilag, who
rented it to the four students for the duration of their junior and
senior years. The two townhouses share a common wall. On
the other side of the students’ residence, another common wall
separated them from Lee Garling and his mother, who has
resided in her O Street townhouse for forty-two years.
Shortly after the students moved in, Washburn began
complaining that they were too noisy at night and that the noise
1
Robert Frost, Mending Wall, in THE POETRY OF ROBERT FROST
33-34 (Edward Latham ed., 1969).
3
frequently disturbed his sleep. Between September 22 and
December 28, 2001, Washburn documented his complaints in
three lengthy letters directed to Julianne Fultz, Georgetown
University’s Coordinator of Off-Campus Student Life, and
Nancy Itteilag, the students’ landlord.
On March 1, 2002, Washburn sent another letter to Fultz,
complaining that “spasms of noise” from the students’ residence
had awakened him eight times during the night of February 27-
28, 2002. Joint Appendix (J.A.) 247. According to Washburn,
he had made recordings of the noise: “I documented these times
with a dictation-type tape recorder. Even though the recorder
picks up most background sounds poorly, you can clearly hear
sounds from [the students’ residence] as I was noting the time
and event.” Id. Washburn offered to bring the recordings to
Fultz so that she could have “contemporaneous evidence of the
disturbances.” Id. Washburn’s letter also stated that “the
frequent and excessive noise . . . constitute[d] a common-law
nuisance remediable by the courts” and that he was “prepared to
pursue th[at] avenue[].” J.A. 248. Washburn hand-delivered a
copy of the letter to the students.
The students consulted with Fultz, who advised them to put
their side of the story in writing so that it would be on record
with the university. The students began drafting a letter to Fultz;
at the same time, they slipped a note under Washburn’s door,
requesting a meeting. Washburn replied by delivering a letter to
the students on the morning of April 16, 2002, again
documenting the number of times he had been wakened by noise
and stating that his “small dictation-type recorder” had picked
up a “burst of laughter” from the students’ residence. J.A. 255.
Washburn threatened that he had no “reasonable alternative now
but to take the matter to court” because he had “exhausted
whatever remedies [Georgetown University could] provide.”
J.A. 256. He sent copies of this letter to Fultz and Itteilag.
4
Later that same day, April 16th, the students responded in
a letter addressed to Fultz, with copies to Washburn and Itteilag.
The students expressed concern that Washburn saw their
“supposed behavior as a common law nuisance.” J.A. 250.
They denied Washburn’s allegations about noise coming from
their residence at night and described their frustration regarding
their relationship with him, contending that they “enjoyed a very
constructive and cordial relationship with [their] neighbor on the
other side, Mr. Lee Garling.” J.A. 249. The students recalled
only two occasions on which Garling had approached them
about noise and stated that they were “confident that [Garling]
would attest to the celerity with which [they] met his request” to
lower the volume. J.A. 250.
In a passage that would later become the focus of
Washburn’s defamation suit, the students also expressed alarm
that Washburn was recording sounds coming from their
residence:
We are also especially concerned that Mr. Washburn
has been, unbeknownst to us, tape recording noises,
however faint, that come from our home. This is a
clear violation of privacy and something that greatly
concerns us. Specifically, we feel Mr. Washburn is
violating Section 2511(2)(d) of US Code (attached)
that states,
It shall not be unlawful under this chapter for a
person not acting under color of law to intercept a
wire, oral, or electronic communication where
such person is a party to the communication or
where one of the parties to the communication has
given prior consent to such interception unless
such communication is intercepted for the purpose
of committing any criminal or tortuous [sic] act in
5
violation of the Constitution or laws of the United
States or of any state.
Given this statute, we feel Mr. Washburn is violating
our privacy since he was neither a party to the faint
communications he recorded, nor was he given any
form of consent by any of the parties to the
communication. In the same way that Mr. Washburn
expects us to adhere to the guidelines of the
Georgetown community with regards to . . .
appropriate noise levels, we would hope that Mr.
Washburn would respect our right to privacy as
outlined in the above law.
Id.2 The students repeated that they were upset at “the implicit
threats of litigation for ‘a common law nuisance’ . . . especially
since . . . [they had] repeatedly had [their] own rights violated by
Mr. Washburn’s illegal tape recording.” J.A. 251. And they
closed with the suggestion to Fultz that “a meeting between Mr.
Washburn and the four of us in your office may be the best way
to iron out our differences.” J.A. 252.
Approximately one year later, on April 11, 2003, Washburn
filed this action in the United States District Court for the
District of Columbia, invoking the court’s diversity jurisdiction.
Washburn alleged that he was defamed and placed in a false
light3 by the April 16, 2002 letter’s allegation that he had
2
The students attached a copy of the full text of 18 U.S.C. § 2511,
as well as a paragraph interpreting the statute that appears to have
been taken from a Justice Department website. See J.A. 338-43.
3
“An invasion of privacy-false light claim requires a showing of:
(1) publicity (2) about a false statement, representation or imputation
(3) understood to be of and concerning the plaintiff, and (4) which
6
violated the students’ rights by illegally recording sounds from
their residence. He sought $1.5 million in compensatory
damages and $6 million in punitive damages for defamation and
false light invasion of privacy arising out of the students’
“patently false charge that Plaintiff had violated a federal felony
law.” Compl. ¶ 45.
The district court referred all discovery matters to a
magistrate judge, who issued a scheduling order limiting the
parties to five depositions per side and setting an initial
discovery deadline of January 23, 2004. On August 27, 2003,
the students filed a motion to bifurcate the issues of liability and
damages and to stay discovery regarding damages, which the
district court granted. Just before the scheduled close of
discovery, Washburn moved to compel production of all emails
between the students that referred to him or the pending lawsuit
in any way. The magistrate ordered the students to produce the
emails for his in camera review, but ultimately found them
irrelevant to the litigation. He also granted an extension of
discovery until February 27, 2004.
Two weeks before the extended deadline, Washburn
requested an additional extension and an increase in the number
of permitted depositions. In support, he produced an affidavit
from his neighbor, Garling, who attested that one of the students
(Donnelly) told Garling in mid-2002 that Washburn had been
places the plaintiff in a false light that would be offensive to a
reasonable person.” Kitt v. Capital Concerts, Inc., 742 A.2d 856, 859
(D.C. 1999) (citing RESTATEMENT (SECOND) OF TORTS § 652E
(1977)). “The false light invasion of privacy action differs from an
action for defamation because a defamation tort redresses damage to
reputation while a false light privacy tort redresses mental distress
from having been exposed to public view.” White v. Fraternal Order
of Police, 909 F.2d 512, 518 (D.C. Cir. 1990).
7
recording noises coming from the students’ home and that such
action was “illegal.” J.A. 160. The magistrate ultimately denied
the request for an extension of time and increase in depositions,
concluding that it had “come[] too late in the game.” Washburn
v. Lavoie, No. 03-869, Mem. Op. at 7 (D.D.C. May 4, 2004)
(Magistrate’s Op.).
Following the close of discovery, Washburn moved for
summary judgment, contending that the students’ statements
constituted libel per se and placed him in a false light. The
students cross-moved for summary judgment, contending that
their statements were protected by the qualified privilege of self-
defense. Washburn countered that no privilege attached, and
that even if one did, the students had vitiated it through malice
and excessive publication. In support of the claim of excessive
publication, Washburn relied on the Garling affidavit.
The district court rejected the students’ request for summary
judgment based on the self-defense privilege, stating that “a
genuine issue of material fact exist[ed] as to whether there was
excessive publication of defendants’ statements, in particular to
defendants’ neighbor Lee Garling.” Washburn, 357 F. Supp. 2d
at 213 n.4. Nonetheless, and sua sponte, the court entered
summary judgment in favor of the students on the ground that,
“as a matter of law, the defendants’ statements were not capable
of a defamatory meaning,” id. at 215, and did not place
Washburn in a “highly offensive light.” Id. at 216. This appeal
followed.
II
We review the district court’s grant of summary judgment
de novo. Waterhouse v. District of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). Summary judgment is appropriate if “there is
no genuine issue as to any material fact and the moving party is
8
entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
A dispute about a material fact is not “genuine” unless “the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson, 477 U.S. at 248.
Washburn begins his attack on the district court’s grant of
summary judgment by noting that the students did not seek
judgment on the rationale employed by the court -- that the
students’ statements were incapable of defamatory meaning --
and that he therefore did not have an opportunity to brief the
question. We pretermit the problems posed by this circumstance
and instead consider the rationale that was raised and briefed by
the opposing parties both in the district court and on this appeal:
the qualified privilege of self-defense. Even assuming that the
students’ statements were capable of a defamatory meaning, we
conclude that they were protected by the self-defense privilege.
Moreover, and contrary to the view of the district court, we find
no genuine issue of material fact as to circumstances that would
vitiate the privilege. Because an appellate court may affirm a
grant of summary judgment on a ground not relied upon by the
lower court, provided that the opposing party has had a fair
opportunity to dispute the facts material to that ground, see
Proctor v. State Farm Mut. Auto. Ins. Co., 675 F.2d 308, 326
(D.C. Cir. 1982), we affirm the district court’s judgment on the
ground of the self-defense privilege.4
4
In light of Washburn’s threat to file a common-law nuisance
lawsuit against the defendants (a threat he ultimately carried out by
filing a complaint in District of Columbia Superior Court on August
14, 2002), it might be more apt to analyze this case under the judicial
proceedings privilege. This absolute privilege extends to defamatory
“communications preliminary to a proposed judicial proceeding . . . if
the matter has some relation thereto.” RESTATEMENT § 587; see
Brown v. Collins, 402 F.2d 209, 212 & n.3 (D.C. Cir. 1968). We do
9
The District of Columbia recognizes the common-law
qualified privilege of self-defense as a complete defense to a
claim of libel or slander. Mosrie v. Trussell, 467 A.2d 475, 477
(D.C. 1983); see Novecon Ltd. v. Bulgarian-American Enter.
Fund, 190 F.3d 556, 566 (D.C. Cir. 1999); Afro-American
Publ’g Co. v. Jaffe, 366 F.2d 649, 656 & n.16 (D.C. Cir. 1966)
(citing RESTATEMENT (FIRST) OF TORTS § 594 (1938)). The
privilege applies “if the circumstances induce a correct or
reasonable belief that (a) there is information that affects a
sufficiently important interest of the publisher, and (b) the
recipient’s knowledge of the defamatory matter will be of
service in the lawful protection of the interest.” RESTATEMENT
(SECOND) OF TORTS § 594 (1977) (RESTATEMENT). The
“existence of the privilege is a question of law for the court[;]
whether it was abused by the defendant, is a question of fact for
the jury,” unless summary judgment is appropriate. Mosrie, 467
A.2d at 477; see Novecon, 190 F.3d at 566.
We have no doubt that the students’ interests in avoiding
discipline from Georgetown University, averting eviction by
their landlord, and guarding against becoming defendants in a
threatened common-law nuisance lawsuit were “sufficiently
important” to implicate the privilege. RESTATEMENT § 594.
Nor do we have any doubt that those interests were under
serious attack from the missives fired off by Washburn. The
students therefore “had the right to repel the attack . . . and to
retort upon [their] assailant if such retort was a necessary part of
[their] defense or fairly arose out of the charges made against”
them. Mosrie, 467 A.2d at 479 (internal quotation marks
omitted); see RESTATEMENT § 594 cmt. h (“It is enough that the
circumstances are such as to lead a reasonable [person] to
not examine the judicial proceedings privilege here, however, because
the students did not raise it.
10
believe that the interest is in danger and that the defamatory
publication is reasonably necessary for its protection.”).
The students’ April 16th letter to Fultz, copied to Itteilag,
fairly arose out of Washburn’s attack on their interests and
constituted a defense against that attack. The letter was sent
only to persons who had received Washburn’s original
correspondence, persons who had the power to sanction the
students if they believed his allegations. Indeed, one of the
recipients -- Fultz -- had expressly recommended that the
students send a letter in order to put their defense on record.
And Washburn ultimately named the other recipient -- Itteilag --
as a co-defendant when he made good on his threat to file a
(separate) common-law nuisance suit against the students in
District of Columbia Superior Court. The majority of the
students’ letter was a refutation of Washburn’s factual
allegations. Their specific retort regarding their assailant’s tape-
recording of noises from their home constituted a challenge to
the legality of the evidence he had proffered against them, as
well as a suggestion that they also had claims to raise if
Washburn pursued his threatened lawsuit. We therefore
conclude that the students’ April 16th letter is covered by the
privilege of self-defense.
Washburn argues that, even if the students’ letter were
qualifiedly privileged, the privilege was vitiated by the
defendants’ malice and excessive publication. He is correct that
a showing of “excessive publication or express malice” can
destroy a qualified privilege. Curry v. Giant Food Co., 522
A.2d 1283, 1294 (D.C. 1987). The burden of proof at this stage,
however, rests on the plaintiff. See Novecon, 190 F.3d at 567;
Columbia First Bank v. Ferguson, 665 A.2d 650, 656 (D.C.
1995); Mosrie, 467 A.2d at 477. And as we have noted before,
District of Columbia law makes it quite difficult for a plaintiff
to overcome a qualified privilege. Novecon, 190 F.3d at 567.
11
The common-law malice necessary to overcome the
privilege “emphasize[s] bad faith and evil motive.” Moss v.
Stockard, 580 A.2d 1011, 1026 n.29 (D.C. 1990); see Mosrie,
467 A.2d at 477. It is “the doing of an act without just cause or
excuse, with such a conscious indifference or reckless disregard
as to its results or effects upon the rights or feelings of others as
to constitute ill will.” Moss, 580 A.2d at 1025; Mosrie, 467
A.2d at 477. Moreover, “unless the [defamatory] statement is
‘so excessive, intemperate, unreasonable, and abusive as to
forbid any other reasonable conclusion than that the defendant
was actuated by express malice,’” it is insufficient to support a
finding of malice on its own. Moss, 580 A.2d at 1024 (quoting
Ford Motor Credit Co. v. Holland, 367 A.2d 1311, 1314 (D.C.
1977)); see Novecon, 190 F.3d at 567. “Mere vehemence, even
exaggerated statements . . . will not as a matter of law destroy
the privilege or necessarily present a question of fact.” Mosrie,
467 A.2d at 479 (internal quotation marks omitted).
We do not find the requisite malice in the language of the
students’ April 16th letter. Washburn does not dispute that he
recorded the students. Rather, he disputes the students’
characterization of such recording as “illegal.” But as the
district court found, a reasonable person in the position of the
letter’s addressees (Fultz and Itteilag) “would have viewed the
defendants’ accusations to be what they were: statements by
highly frustrated students who [were] cleverly, but not expertly,
reacting to an attorney’s threat of litigation.” Washburn, 357 F.
Supp. 2d at 215. Indeed, the inexpert nature of their accusations
is evidenced by the fact that the statutory section quoted in the
students’ letter does not make any act illegal, but rather
describes those acts that are “not unlawful” under the statute.
J.A. 250 (“It shall not be unlawful under this chapter for a
person . . . .” (quoting 18 U.S.C. § 2511(2)(d) (emphasis
added))). And while Washburn plainly feels aggrieved by the
students’ claim that he violated their rights by illegal tape-
12
recording, this charge is hardly as intemperate as allegations that
the District of Columbia Court of Appeals found insufficient to
vitiate the self-defense privilege in Mosrie v. Trussell, 467 A.2d
at 477. There, notwithstanding the court’s description of the
defendant’s statements as “alleg[ing] dereliction of duty and
possible criminal abuses” by the plaintiff, id., the court
concluded that “[a]ny finding of malice would be based only on
speculation, which is not sufficient to send the issue to the jury.”
Id. at 478.
Nor are we persuaded by Washburn’s contention that the
students vitiated the privilege through excessive publication --
namely, by repeating the illegal tape-recording charge to their
neighbor, Garling. The communication to Garling was not a
case of “excessive publication,” as that rubric does not come
into play unless the defendant “knowingly publishes the
[defamatory] matter to a person to whom its publication is not
otherwise privileged.” RESTATEMENT § 604.5 Here, the
publication to Garling was itself covered by the self-defense
privilege.6
At the time Donnelly spoke to Garling (mid-2002,
according to Garling’s affidavit), Washburn had repeatedly
threatened the students with a lawsuit for common-law nuisance.
5
Where the matter is published to such a person, the privilege is
lost unless the defendant “reasonably believes that the publication is
a proper means of communicating the defamatory matter to the person
to whom its publication is privileged.” RESTATEMENT § 604.
6
Another reason for not evaluating the communication to Garling
under the “excessive publication” rubric is that the students did not
give Garling a copy of the April 16th letter, but rather orally told him
that Washburn had illegally recorded them. Accordingly, the incident
is more accurately viewed as a separate case of alleged slander, as to
which we again conclude that the self-defense privilege applies.
13
Garling -- the students’ neighbor on the side opposite from
Washburn -- was obviously a potential witness in such a suit.
Indeed, the students’ April 16, 2002 letter cited their amicable
relationship with Garling and expressed their confidence that he
“would attest to the celerity with which [they] met his request”
to quiet down on two occasions. J.A. 250 (emphasis added).
Washburn, too, clearly regarded Garling as a witness; he
ultimately filed an affidavit from Garling in support of his
defamation suit. Given that Garling was a potential witness
whom both sides were attempting to persuade, Donnelly’s
statement to him was made “for the protection of [the students’]
own rights or interests” and therefore fell within the privilege.
Dickins v. International Bhd. of Teamsters, 171 F.2d 21, 24
(D.C. Cir. 1948). And as with the letter to Fultz and Itteilag, the
language of the statement to Garling -- who, as a neighbor, was
also aware of the context in which it was made -- was
insufficient to establish malice.
In sum, we conclude that the qualified privilege of self-
defense applies both to the April 16th letter to Fultz and Itteilag,
and to Donnelly’s mid-2002 oral statement to Garling. The
“dispositive issue in this case, as in most cases involving an
assertion of qualified privilege, is whether there has been
sufficient evidence of malice to overcome the privilege.”
Columbia First, 665 A.2d at 656; see Novecon, 190 F.3d at 566-
67. Under District of Columbia law, where “the language of the
communication and the circumstances attending its publication
by the defendant are as consistent with the non-existence of
malice as with its existence, there is no issue for the jury, and it
is the duty of the trial court to direct a verdict for the defendant.”
Mosrie, 467 A.2d at 478 (citation and internal quotation marks
omitted); see Novecon 190 F.3d at 567; Dickins, 171 F.2d at 25;
Alfred A. Altimont, Inc. v. Chatelain, Samperton & Nolan, 374
A.2d 284, 291 (D.C. 1977). For the reasons discussed in this
Part, we conclude that no reasonable factfinder could find that
14
the language and circumstances of the communications were not
at least as consistent with the non-existence of malice as with its
existence, and we therefore affirm the district court’s grant of
summary judgment. Moreover, because “the same privileges
applicable to libel claims may be invoked to defend false light
claims,” we affirm the grant of summary judgment on the
plaintiff’s false light claim as well. White v. Fraternal Order of
Police, 909 F.2d 512, 518 (D.C. Cir. 1990) (citing
RESTATEMENT § 652G); see Browning v. Clinton, 292 F.3d 235,
248 (D.C. Cir. 2002).
III
Finally, we consider Washburn’s challenges to three
additional rulings, primarily involving pretrial discovery, made
prior to the district court’s grant of summary judgment. We
review such challenges solely for abuse of discretion. See In re
Sealed Case (Medical Records), 381 F.3d 1205, 1211 (D.C. Cir.
2004); Information Handling Servs., Inc. v. Defense Automated
Printing Servs., 338 F.3d 1024, 1032 (D.C. Cir. 2003); Moattar
v. Foxhall Surgical Assoc., 694 A.2d 435, 440 (D.C. 1997).
Washburn’s first challenge is to the district court’s decision
to bifurcate the issues of liability and damages, and to stay
discovery regarding damages. Washburn contends that if “some
issue of ‘liability’ must be tried by a jury, there will be a serious
problem, of constitutional dimension” arising from the
bifurcation and stay of discovery. Appellant’s Br. 38. But
because we affirm the grant of summary judgment, no issue of
liability will be tried by a jury, and the error Washburn asserts
will therefore have no consequence.
Second, Washburn contends that the district court erred in
refusing to order the defendants to produce copies of their
emails. Washburn had hoped to find extrinsic evidence of
15
malice in the emails, and he contends that the court’s refusal to
order their production denied him the evidence required to
vitiate the qualified privilege. But the magistrate judge did
order the defendants to produce the emails: he ordered them to
produce the emails for in camera inspection, and he reviewed
them personally. The magistrate found that “nearly half of the
emails [were] devoid of anything bearing upon this lawsuit” and
that the other half dealt only with “issues such as costs of
litigation, retention of counsel, or the need to answer
interrogatories.” Magistrate’s Op. 4. There is, therefore,
nothing to plaintiff’s claim that he was denied relevant evidence,
and we find no abuse of discretion in the magistrate’s refusal to
require the defendants to disclose the emails to the plaintiff. See
Goodman Holdings v. Rafidain Bank, 26 F.3d 1143, 1147 (D.C.
Cir. 1994) (noting that “the scope of discovery lies within the
district court’s discretion”).
Finally, Washburn contests the district court’s denial of his
motion to extend the discovery deadline and to increase the
number of permitted depositions. He asserts that he needed the
additional time to pursue more “depositions of other persons,
such as other neighbors, who might have been recipients” of the
defendants’ defamation. Appellant’s Br. 44.
Washburn did not file this motion until two weeks before
the February 27, 2004 discovery deadline. He justifies the delay
on the ground that he did not learn of Donnelly’s statement to
Garling until that time, and hence until then did not have “solid
information that the[re] may have been further spread of
[d]efendants’ accusations.” Appellant’s Br. 11. But the
February 2004 deadline gave Washburn ten months from the
filing of the complaint and almost two years from the date of the
students’ April 2002 letter to obtain information from Garling
(who lived just two doors away) and to question any other
16
neighbors he wished. As the magistrate explained in denying
the request:
[P]laintiff waited to file his motion until the eve of
discovery -- after discovery ha[d] already been
extended once. Simply put, plaintiff’s request comes
too late, particularly when plaintiff named the source
of this new evidence -- his neighbor -- in his own
initial disclosures and could have sought his deposition
and investigated any information he learned from the
deposition well before discovery was set to close.
Magistrate’s Op. 8. In short, Washburn had “ample opportunity
prior to the motion for summary judgment to take discovery,”
and the magistrate judge did not abuse his discretion by
concluding that Washburn waited too long to request more time
for more depositions. Zerilli v. Smith, 656 F.2d 705, 716 (D.C.
Cir. 1981); see Ned Chartering & Trading, Inc. v. Republic of
Pakistan, 294 F.3d 148, 151 (D.C. Cir. 2002) (noting that this
court “grant[s] district courts great latitude in determining how
much time is adequate” for discovery).
IV
For the reasons set forth above, the judgment of the district
court is
Affirmed.